The Agenda: Civil Liberties Oversight Board

By SCOTT SHANE

Back in 2003, the national commission on the Sept. 11 attacks advised that as the country bulked up its defenses against terrorism, the watchers themselves would require watching. Congress heeded the warning and created the Privacy and Civil Liberties Oversight Board in 2004 to make certain more aggressive intelligence collection did not unduly infringe on Americans' rights.

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“We thought everything with a national security label on it was going to pass,” said Thomas H. Kean, chairman of the 9/11 commission and former governor of New Jersey, in an interview. “So we felt very strongly that there had to be some voice for civil liberties in the debate.”

Thus began a long, sad story - one quite relevant to The Agenda's look at the balance of security and civil liberty. It's probably fair to say that few governmental bodies have had a mor e troubled childhood than this one.

Over most of the eight years since it was formally established, the board has rarely functioned at all, let alone proven to be an aggressive watchdog. Neglected by the Bush and Obama administrations and hampered by political squabbles, it has been out of business altogether for five years.

“It's just been a total frustration,” said Mr. Kean, who has testified repeatedly to Congress about the need to get a strong board up and running.

Now, that may be happening. Or not, depending on who is talking.

The board got off to a slow start initially and held its first meeting in 2006. Critics noted that since it was then technically part of the White House, it could hardly be considered independent - a point a Democratic member, Lanny J. Davis, emphasized when he resigned in protest in 2007.

That year, heeding the complaints, Congress passed new legislation strengthening the board and removing it from the White House. But for nearly three years after taking office, President Obama did not even nominate a full slate of five members to the reconstituted board. He finally completed the nominations in December.

Last week, the Senate confirmed four of the five members - two Republicans, Elisabeth C. Cook, a lawyer at Wilmer Hale, and Rachel L. Brand, chief counsel for regulatory litigation at the U.S. Chamber of Commerce; and two Democrats, James X. Dempsey, vice president of the Center for Democracy and Technology, and Patricia M. Wald, a retired federal judge.

But because of the objection of unnamed senators, it took no action on the board's full-time chairman, David Medine, a Democrat and lawyer who long worked at the Federal Trade Commission and now is working temporarily at the Securities and Exchange Commission while awaiting Senate action.

The chairman is the board's only full-time member and has the authority to hire a staff. So wheth er the board can begin its work without Mr. Medine is uncertain; two of the confirmed board members said they had agreed not to comment for the time being.

One theory circulating in Washington is that the delay is Republican strategy: if Mitt Romney becomes president and the job is not yet filled, he will be able to appoint a member of his party to a six-year term as chairman.

Mr. Kean, a Republican, said he hoped that was not his party's strategy. He said Mr. Medine appears to be a qualified and not unduly partisan choice, and that further delay is unacceptable. “We were delighted that at least a majority of the board is confirmed,” he said. “My hope is they'll follow up with the chairman.”

Sharon Bradford Franklin, senior counsel at The Constitution Project, which advocates for civil liberties in Washington, noted that cybersecurity bills proposed in Congress include a formal role for the board and said it is long since time for the board to go to work. The goal, she said, “is not to end national security programs but to make sure they're designed in a smart way.”

By all accounts, the 2007 law gives the board genuine clout. It will have access to even the most secret government programs, with subpoena power to enforce its demands. In principle, it could prove to be a significance check on the counterterrorism machinery built over the last decade. But to do so, the board will have to overcome a daunting history, even by Washington standards, of delay and neglect.

What do you think? Is it time to give the board a chance to operate? Or are there sufficient public and private watchdogs over the agencies whose job is to keep Americans safe from the likes of Al Qaeda?

Steinbeck Family Outraged Texas Judge Cited \'Of Mice and Men\' in Execution Ruling

By ROBERT MACKEY

Marvin Wilson, a mentally retarded man with an I.Q. of 61, was executed by the state of Texas on Tuesday night, after the Supreme Court refused to accept the argument that the killing violated the constitutional ban on “cruel and unusual punishments.”

As the legal analyst Andrew Cohen explains on The Atlantic's Web site, the execution of a 54-year-old man “who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes,” seemed to “directly contradict the spirit, if not the letter,” of a Supreme Court ruling in 2002 that appeared to bar the execution of mentally retarded inmates.

Mr. Wilson's lawyers argued that the court should intervene because Texas uses criteria to determine whether or not someone can be fairly classified as mentally retar ded that “lack any scientific foundation,” The Texas Tribune reported. As The Atlantic Wire notes, in a 2004 ruling that paved the way for Mr. Wilson's execution, a state court judge turned instead to literature, invoking John Steinbeck's “Of Mice and Men” to describe the difficulties of defining “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.”

Upholding the state's right to execute a mentally impaired man named Jose Garcia Briseno despite the Supreme Court's prior ruling, a Texas appeals court observed in 2004:

Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental reta rdation be exempt from an otherwise constitutional penalty?

(The complete Briseno opinion was posted online by The Texas Tribune.)

After Thomas Steinbeck, the writer's son, read a Guardian article on how his father's novel had been used in a Texas court to argue for the execution of the mentally retarded, he joined the effort to halt the killing of Mr. Wilson The Beaumont Enterprise reported. In an outraged statement released on Tuesday, just before Mr. Wilson was put to death for a fatal shooting in 1992, Mr. Steinbeck wrote:

On behalf of the family of John Steinbeck, I am deeply troubled by today's scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e. Lennie Small from “Of Mice and Men,” as a benchmark to identify wh ether defendants with intellectual disability should live or die.

My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way. And the last thing you ever wanted to do, was to make John Steinbeck angry.

In 1937, the novelist himself told The New York Times that the model for his character, a killer who did not comprehend his own actions, was shown leniency by the American legal system of the time. “Lennie was a real person,” Mr. Steinbeck said. “He's in an insane asylum in Calif ornia right now. I worked alongside him for many weeks. He didn't kill a girl. He killed a ranch foreman. Got sore because the boss had fired his pal and stuck a pitchfork right through his stomach. I hate to tell you how many times I saw him do it. We couldn't stop him until it was too late.”

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In a Starving Nation, Luxury for a Few

By CHOE SANG-HUN

SEOUL, South Korea - The South Korean news media, which scrutinizes every photo of the North Korean leader, Kim Jong-un, zeroed in this week on one particular photo released by the North's state-run media on Tuesday. It showed Mr. Kim visiting a military unit, apparently last month around the time he fired the top military leader, Vice Marshal Ri Yong-ho, and was believed to have purged several other top generals.

But the photo also showed his wife, Ri Sol-ju, with something most North Korean women have never heard of, much less owned: a Christian Dior handbag.

South Korean journalists did not take long to identify Ms. Ri's handbag and its going price in Seoul: 1.8 million won, or $1,600. That is about 16 times the average monthly wage of a North Korean worker in the Gaeseong industrial park, a joint venture between North and South Korea that provides some of the best-paying jobs in the impoverished North.

The So uth Korean news media also noted the apparent “belly fat” - or is it a baby bump? - that Ms. Ri has developed. The South Korean spy agency believes that Ms. Ri and Mr. Kim already have a child.

Ms. Ri has drawn international attention since she began accompanying her husband in public early last month. Her expensive-looking designer suits stand out among the North Korean elites, who typically wear olive-colored military uniforms and drab Mao suits. Some outside analysts even consider her appearance as a sign of potential change in leadership and even lifestyle that Mr. Kim could bring about as a youthful leader who studied in Europe as a teenager. (Recent visitors to Pyongyang, the North Korean capital, reported seeing miniskirts, high heels, Nike hats and Hello Kitty cellphone accessories.)

But Ms. Ri's her fashionable style magnifies how disconnected the ruling Kim family remains from the public.

A famine in the 1990s killed numerous North Koreans and drove many others to flee to China and South Korea. The regime still cannot feed its own people and needs outside aid. But the Kim family has lived in style.

Konstantin Pulikovsky, a former Russian presidential envoy, wrote “The Orient Express,” a book about the train trip that Mr. Kim's father, Kim Jong-il, took through Russia in 2001. Mr. Pulikovsky, who accompanied the North Korean leader, said Mr. Kim's 16-car private train was stocked with crates of French wine. Live lobsters were delivered in advance to stations.

A Japanese cook who goes by the name Kenji Fujimoto and who worked as Kim Jong-il's personal sushi chef from 1988 to 2001 later wrote that Mr. Kim had a wine cellar stocked with 10,000 bottles, and that he ate shark fin soup weekly. His banquets often lasted until morning and could stretch for a few days, according to the chef. (When Mr. Fujimoto visited Pyongyang last month at Kim Jong-un's invitation, he went there with choice cuts of tuna - a delicacy that is Kim family favorite.)

In 2006, in reaction to North Korea's first nuclear test, Washington tightened its sanctions against the North. It banned 60 luxury items from entering the country, including yachts, Chanel perfumes, Cognac, large-screen television sets and Mercedes-Benz cars - items that the Kim family had doled out as gifts to the loyal military and party elite.

Ms. Ri's ever-changing appearance seems to contradict the public image that Kim Jong-un wanted to maintain for his family. He himself shows up in a Mao suit. Just a week ago, the North Korean news media released the text of a speech that Mr. Kim delivered to party leaders in July. In that speech, he lovingly remembered how his father insisted on wearing the same threadbare gray parka to remind himself of the famine of the 1990s.

The United Nations reported in June that two-thirds of North Koreans still faced grave food shortages. Last week, it began supplying urgent humani tarian aid after the North reported that nearly 200 people were killed and vast tracts of farmland damaged by flooding.

During his latest visit to a military unit, Mr. Kim was quoted as saying, “It is good to regularly provide every soldier with at least 200 grams of beans every day.” Watching an art performance by female soldiers together with his fashionable wife, he praised the soldiers for not allowing “any evil idea to come into their minds,” according to the North's state-run Korean Central News Agency.

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